AUSTIN--A new study that examined 155 capital cases where expert
witnesses predicted that the defendant would be a future danger found
they were wrong 95% of the time. Texas is one of only two states
that allows “future dangerousness” to play the critical role in whether
an individual receives a death sentence, despite the fact that the
practice is rejected by the psychiatric expert community as
unreliable.

The study, Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness,
was prepared by Texas Defender Service, a non-profit law firm involved
in capital litigation, attorney training and research, in collaboration
with Dr. John Edens, a psychologist and professor at Sam Houston State
University.

Of
the 155 inmates examined, including one who was exonerated by the
courts after being found to be innocent of the crime, only eight (5%)
later engaged in seriously assaultive behavior which resulted in injury
requiring treatment more than first-aid. Thirty-one of the 155
inmates (20%) have no records reflecting any disciplinary
violations. The remaining 75% of inmates committed disciplinary
infractions involving conduct not amounting to serious assaults,
including minor infractions such as possessing cash or lotto tickets,
food in their cells, or too many sheets. None of the inmates in the
study committed another homicide, and only two inmates have been
prosecuted for crimes committed while in prison.

During the sentencing phase of a capital murder trial, jurors in Texas
are required to answer several questions, including whether there is a
probability that the defendant would be a continued threat to society.
Only one other state, Oregon, allows this to play a critical role in
whether an individual receives a death sentence. 29 of the 38
death penalty states do not allow any evidence on this issue.

“In
Texas, the determination of who lives and who dies is based on
predictions of future dangerousness that have been renounced as
unreliable and without scientific validity by the leading mental health
associations,” said Andrea Keilen, Deputy Director of Texas Defender
Service. “The integrity of the Texas sentencing scheme is on par with
medieval trials by ordeal. We would do just as well to drop
people in boiling water to see whether they float.”

The
American Psychiatric Association has stated since 1983 that “The
unreliability of psychiatric predictions of long-term future
dangerousness is by now an established fact within the
profession.” The Association continues to urge that expert
psychiatric testimony on future dangerousness be deemed inadmissible at
capital sentencing hearings.

“There are strong reasons to question the accuracy of predictions of
violence made by prosecution experts in capital murder trials. It
seems impossible to reconcile the glaring inaccuracy of the predictions
made by these experts with the requirement that death sentences be
meted out in a non-capricious manner,” said Dr. John Edens. “It
is incumbent on mental health experts to avoid engaging in fraudulent
testimony that is lacking in any meaningful scientific foundation.”

The
report cites the case of Randall Dale Adams as the most egregious
failure. An expert witness, Dr. James Grigson, who had earned the
nickname Dr. Death, testified during the sentencing phase of the trial:
“I would place Mr. Adams at the very extreme, worse or severe end of
the scale. You can’t get beyond that. There is nothing known in
the world today that is going to change this man; we don’t have
anything.”

Twelve years after being sentenced to death, Adams was exonerated and
released from Texas death row, and it was acknowledged that he has no
connection to the crime for which he had been sentenced to death.

Of
the 155 inmates identified in the study, 67 have been executed, 40 are
currently on death row, and 48 received death sentences that were later
reduced to a lesser sentence, including Adams’ exoneration.

The
study relied on archival records to identify inmates in the Texas
Department of Criminal Justice who were the subject of state expert
testimony at trial declaring them a continuing threat to society and
received a death sentence in the sentencing phase of the trial.
The study includes every case identified as having state-sponsored
future dangerousness testimony. There are certainly other cases
in which state-paid experts testified on the issue, but these cases
were not discovered because of partial or missing documentation in the
available records. There was no selection of cases for inclusion
in the study; every case identified was included.

“Even with
the state-of-the-art techniques available to mental health
professionals today, there is a significant degree of error in these
predictions of future dangerousness. Given the severity of the
consequences, this level of error takes on greater significance,” said
Dr. Sol Fulero, President of American Psychology-Law Society. “In
the nearly 30 years that have passed since re-introduction of the death
penalty, a number of studies demonstrate that many inmates sentenced to
death on the prediction of future dangerousness have proven to be
non-assaultive, compliant inmates who pose no risk to other inmates or
prison employees.”

“Trial judges have a duty to screen out junk science that can mislead
the jury and distort its verdict. The absence of any genuine
oversight or meaningful guidance by the Texas Court of Criminal
Appeals, however, makes it impossible for trial judges to perform this
gatekeeper role effectively. Its time to revisit whether this
unreliable pseudo-scientific testimony should be allowed at all,” said
Rob Owen, an Adjunct Professor at the University of Texas School of Law.

“The alarming
error rate in capital sentencing would not be tolerated in any other
context. Would you seek life-or-death advice from a physician who
misdiagnosed patients 95% of the time?” asked Jim Marcus, Executive
Director of Texas Defender Service. “The constitution requires
heightened reliability in capital cases. Texas is delivering just
the opposite. This problem is endemic to Texas’ unique method for
assessing the death penalty and why the Texas statute should be brought
into line with the rest of the capital sentencing statutes in the
nation.”

The
report proposes a range of reforms, including no longer allowing
testimony on future dangerousness, changing sentencing procedures to
conform with other states, a judicial review process that could take
into account actual behavior by inmates sentenced to death on the basis
of unreliable predictions, and passage of a life without parole
sentencing option.

To
date Texas has executed 321 men and women since re-introduction of the
death penalty in 1976, more than one-third of all the executions
carried out in America. In recent years, between 30 and 40 new
death sentences have been handed out by Texas juries annually.

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